Common use of Agreements and Commitments Clause in Contracts

Agreements and Commitments. Except as specifically identified in Schedule 2.12, Company is not a party or subject to any of the following (whether oral or written): (a) any contract, commitment, agreement, quotation or purchase order providing for payments by or to Company in an amount in excess of $10,000 individually or $50,000 in the aggregate; (b) any agreement under which Company is licensor of Intellectual Property (as defined in Section 2.13), or under which Company is licensee of any Intellectual Property of any other person (except for standard “shrink wrap” licenses for off-the-shelf software products); (c) any agreement by Company to encumber, transfer or sell rights in or with respect to any Intellectual Property (as defined in Section 2.13 below); (d) any agreement for the sale or lease of real or personal property; (e) any dealer, distributor, sales representative, original equipment manufacturer, value added remarketer, volume purchase agreement or other agreement for the distribution or sale of Company’s products (other than individual purchase orders in the ordinary course of business consistent with past practice); (f) any franchise agreement; (g) any stock redemption or purchase agreement; (h) any joint venture contract or arrangement or any other agreement that involves a sharing of profits with other persons or the payment of royalties to any other person; (i) any instrument evidencing indebtedness for borrowed money or guarantees thereof; (j) any contract containing covenants purporting to limit Company’s freedom to compete in any line of business in any geographic area; (k) any agreement of indemnification or warranting other than standard warranties in connection with the sale of products and/or services in the ordinary course of business, consistent with past practice; (l) any agreement, contract or commitment relating to capital expenditures and which involves future payments in excess of $10,000 individually or $50,000 in the aggregate; (m) any agreement, contract or commitment relating to the disposition or acquisition of any assets by Company or any Intellectual Property, which involves payments individually in excess of $10,000 individually or $50,000 in the aggregate; (n) any purchase order or contract for the purchase of raw materials which involves payments individually in excess of $10,000 individually or $50,000 in the aggregate; (o) any agreement relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or other securities of Company or any options, warrants or other rights to purchase or otherwise acquire any such shares of Company Capital Stock, other securities or options, warrants or other rights therefor, except for those agreements conforming to the standard agreement under the Stock Plans; (p) any contract providing for development of technology for Company, except the Development Agreement; (q) any contract or agreement for the employment of any officer, employee or consultant of Company or any other type of contract, agreement or understanding with any officer, employee or consultant of Company that is not immediately terminable by Company without cost or liability; (r) any contract for consulting or similar services with a term of more than sixty (60) days and which is not terminable without penalty with notice of thirty (30) days or less; or (s) any contract granting most favored nation pricing and/or terms to any customer, licensee, purchaser, reseller, promoter or remarketer of any products or services. (t) any contract with or commitment to any labor union; or (u) any other oral or written agreement, obligation or commitment that is material to Company, its financial condition, business or prospects. All agreements, contracts, obligations and commitments listed in Schedules 2.12, 2.13 and 2.16 (collectively “Material Agreements”) are valid and in full force and effect. Neither Company nor any other party is in breach of or default under any material term of any Material Agreement, nor will Company nor any other party be in breach of or default (with or without notice or lapse of time, or both) under any such term after giving effect to the Merger or the transactions contemplated hereby. No party to any such Material Agreement has given notice that Company is in breach or default thereunder, and no party to any such Material Agreement intends to cancel, withdraw, modify or amend such Material Agreement. A true and complete copy of each Material Agreement and all amendments and schedules thereto has been delivered to Parent’s counsel. Company is not a party to any Material Agreement or any other agreement, contract or instrument with any customer, supplier, landlord or labor union or association that (i) contains any provision that is or could reasonably be expected to become materially burdensome to Company, other than provisions that are in the ordinary course of Company’s businesses and are consistent with industry practice;(ii) provides for discounts or favored pricing to any future purchase of Company’s products or services; (iii) provides for any increases in the prices to be paid by Company to any supplier for any products or services; or (iv) provides for any warranty or similar obligations with respect to products or services other than an obligation to repair or replace products in the event of defective workmanship or materials provided by Company.

Agreements and Commitments. Except as specifically identified in Schedule 2.12set forth under Item 4.13 of the Panopticon Disclosure Letter and delivered or made available by Panopticon to Broadbase herewith, Company or as listed under Item 4.14 or Item 4.17 as required by Section 4.14 or Section 4.17, as the case may be, Panopticon is not a party or subject to any of the following (whether oral or written):written executory agreement, obligation or commitment that is material to Panopticon, its financial condition or business or which is described below and is not terminable within 60 days without cost or penalty to Panopticon, including but not limited to the following: (a) any contract, commitment, agreement, quotation or purchase order Any Contract providing for payments by or to Company Panopticon in an amount with respect to any single transaction of (i) $100,000 or more in excess the ordinary course of $10,000 individually business or (ii) $50,000 or more not in the aggregateordinary course of business; (b) Any license agreement as licensor or licensee, including without limitation any agreement under Contract to which Company is licensor of Intellectual Property Panopticon has granted or may grant in the future a source code license or option or other right to use or acquire source code (except: (i) as defined in Section 2.13), or under which Company is licensee of any Intellectual Property standard non-exclusive consumer software licenses in the ordinary course of any other person business, and (except ii) for standard “shrink wrap” non-exclusive software licenses for offgranted to end-the-shelf software productsuser customers in the ordinary course of business, the form of which has been provided to Broadbase); (c) any Any agreement by Company Panopticon to encumber, transfer or sell any material rights in or with respect to any Intellectual Property Panopticon IP Rights (as defined in Section 2.13 below)4.14) except in the ordinary course of business consistent with past practice; (d) any Any Contract currently in force for hosting, data center, transaction processing or other services related to the Panopticon website and provision of hosted versions of Panopticon products and services; (e) Any agreement for the sale or lease of real or personal propertyproperty involving more than $50,000 per year; (ef) any Any dealer, distributor, sales representative, original equipment manufacturer, value added remarketer, volume purchase agreement remarketer or other agreement for the distribution or sale of Company’s products (other than individual purchase orders in the ordinary course of business consistent with past practice); (f) any franchise agreementPanopticon's products; (g) any Any franchise agreement or financing statement; (h) Any stock redemption or purchase agreement; (hi) any Any joint venture contract Contract or arrangement or any other agreement that involves a sharing of profits with other persons or the payment of royalties to any other person; (ij) any Any instrument evidencing indebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee or guarantees thereofotherwise, except for trade indebtedness or any advance to any employee of Panopticon incurred or made in the ordinary course of business, and except as disclosed in the Panopticon Financial Statements; (jk) any contract Any Contract containing covenants purporting to limit Company’s Panopticon's freedom to compete in any line of business in any geographic area; (k) any agreement of indemnification area or warranting other than standard warranties in connection with the sale of to sell products and/or or services in the ordinary course of business, consistent with past practiceto a specific entity; (l) Any Contract currently in force to provide source code to any agreement, contract third party for any product or commitment relating to capital expenditures and which involves future payments in excess of $10,000 individually or $50,000 in the aggregatetechnology; (m) any agreement, contract or commitment relating to the disposition or acquisition of any assets by Company or any Intellectual Property, which involves payments individually in excess of $10,000 individually or $50,000 in the aggregate; (n) any purchase order or contract for the purchase of raw materials which involves payments individually in excess of $10,000 individually or $50,000 in the aggregate; (o) any agreement relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or other securities of Company or any options, warrants or other rights to purchase or otherwise acquire any such shares of Company Capital Stock, other securities or options, warrants or other rights therefor, except for those agreements conforming to the standard agreement under the Stock Plans; (p) any contract providing for development of technology for Company, except the Development Agreement; (q) any contract or agreement Any Contract for the employment of any officer, employee or consultant of Company Panopticon or any other type of contract, agreement Contract or understanding with any officer, employee or consultant of Company Panopticon that is not immediately terminable by Company Panopticon without cost or liability; (rn) any Any contract for consulting or similar services with a term of more than sixty (60) days and which is not terminable without penalty with notice of thirty sixty (3060) days or less; or (s) any contract granting most favored nation pricing and/or terms to any customer, licensee, purchaser, reseller, promoter or remarketer of any products or services. (t) any contract with or commitment to any labor union; or (uo) any other oral or written agreement, obligation or commitment that is material to Company, its financial condition, business or prospectsContract entered into outside the ordinary course of business. All agreements, contracts, obligations and commitments listed in Schedules 2.12Item 4.13, 2.13 and 2.16 (collectively “Material Agreements”) Item 4.14, or Item 4.17, as required by Section 4.13, Section 4.14, or Section 4.17, as the case may be, are valid and in full force and effect, and except as expressly noted, a true and complete copy of each has been delivered or made available to Broadbase. Neither Company nor Except as noted on Item 4.13, neither Panopticon nor, to the knowledge of Panopticon, any other party is in material breach of or default under any material term of any Material Agreement, nor will Company nor any other party be in breach of or default (with or without notice or lapse of time, or both) under any such term after giving effect to the Merger or the transactions contemplated hereby. No party to any such Material Agreement has given notice that Company is in breach or default thereunder, and no party to any such Material Agreement intends to cancel, withdraw, modify or amend such Material Agreement. A true and complete copy of each Material Agreement and all amendments and schedules thereto has been delivered to Parent’s counsel. Company is not a party to any Material Agreement or any other agreement, contract obligation or instrument with any customercommitment. Panopticon has no liability for renegotiation of government Contracts or sub-Contracts which are material to Panopticon, supplierits financial condition, landlord business or labor union or association that (i) contains any provision that is or could reasonably be expected to become materially burdensome to Company, other than provisions that are in the ordinary course of Company’s businesses and are consistent with industry practice;(ii) provides for discounts or favored pricing to any future purchase of Company’s products or services; (iii) provides for any increases in the prices to be paid by Company to any supplier for any products or services; or (iv) provides for any warranty or similar obligations with respect to products or services other than an obligation to repair or replace products in the event of defective workmanship or materials provided by Companyprospects.

Agreements and Commitments. Except as specifically identified set forth in Schedule 2.12Part 2.12 of the Company Disclosure Letter, Company is not a party or subject to any of the following (whether oral or written): (a) any contract, commitment, agreement, quotation or purchase order providing for payments by or to Company in an aggregate amount in excess of $10,000 individually or $50,000 in the aggregatemore; (b) any agreement under which Company is licensor of Intellectual Property (as defined in Section 2.13)Property, or under which Company is licensee of any Intellectual Property of any other person (except for standard “shrink wrap” licenses for off-the-shelf software products)Person; (c) any agreement by Company to encumber, transfer or sell rights in or with respect to any Intellectual Property (as defined in Section 2.13 below)Property; (d) any agreement for the sale or lease of real or personal property; (e) any dealer, distributor, sales representative, original equipment manufacturer, value added remarketer, volume purchase agreement or other agreement for the distribution or sale of Company’s products (other than individual purchase orders in the ordinary course of business consistent with past practice); (f) any franchise agreement; (g) any stock equity redemption or purchase agreement; (h) any joint venture contract or arrangement or any other agreement that involves a sharing of profits with other persons or the payment of royalties to any other personPerson; (i) any instrument evidencing indebtedness for borrowed money or guarantees thereof; (j) any contract containing covenants purporting to limit Company’s freedom to compete in any line of business in any geographic area; (k) any agreement of indemnification or warranting other than standard indemnities or warranties in connection with the sale of products and/or services in the ordinary course of business, consistent with past practice; (l) any agreement, contract or commitment relating to capital expenditures and which involves future payments in excess of $10,000 individually or $50,000 in the aggregate10,000; (m) any agreement, contract or commitment relating to the disposition or acquisition of any assets by Company or any Intellectual Property, which involves payments individually in excess of $10,000 individually 5,000 or $50,000 in the aggregateaggregate in excess of $10,000; (n) any purchase order or contract for the purchase of raw materials which involves payments individually in excess of $10,000 individually or $50,000 in the aggregate; (o) any agreement relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or interests other equity securities of Company or any options, warrants or other rights to purchase or otherwise acquire any such shares of Company Capital Stock, interests or other equity securities or options, warrants or other rights therefor, except for those agreements conforming to the standard agreement under the Stock Plans; (po) any contract providing for development of technology for Company, except the Development Agreement; (qp) any contract or agreement for the employment of any officer, employee or consultant of Company or any other type of contract, agreement or understanding with any officer, employee or consultant of Company that is not immediately terminable by Company without cost or liability; (rq) any contract for consulting or similar services with a term of more than sixty (60) days and which is not terminable without penalty with notice of thirty sixty (3060) days or less; or; (sr) any contract granting most favored nation pricing and/or terms to any customer, licensee, purchaser, reseller, promoter or remarketer of any products or services. (ts) any contract with or commitment to any labor union; or (ut) any other oral or written agreement, obligation or commitment that is material to Company, its financial condition, business or prospectsor, to Seller’s Knowledge, to Company’s prospects as currently contemplated. All of the foregoing agreements, contracts, obligations and commitments listed in Schedules 2.12Part 2.12 of the Company Disclosure Letter (collectively, 2.13 and 2.16 (collectively the “Material Agreements”) are valid and in full force and effect. Neither Except as set forth in Part 2.12 of the Company nor Disclosure Letter, neither Company nor, to the Knowledge of any Seller, any other party is in breach of or default under any material term of any Material Agreement, nor will Company nor or, to any Seller’s Knowledge, any other party be in breach of or default (with or without notice or lapse of time, or both) under any such term after giving effect to the Merger or the transactions contemplated hereby. No party to To the Knowledge of any such Material Agreement has given notice that Company is in breach or default thereunderSeller, and no party to any such Material Agreement intends to cancel, withdraw, modify or amend such Material Agreement. A true and complete copy of each Material Agreement and all amendments and schedules thereto has been delivered to Parent’s counselBuyer. Except as set forth in Part 2.12 of the Company Disclosure Letter, Company is not a party to any Material Agreement or any other agreement, contract or instrument with any customer, supplier, landlord or labor union or association that (i) contains provides for the reduction of prices charged by Company to any provision Significant Customer for its products or services other than price reductions that is are proportionate to reductions in the related costs (including, without limitation, any “most favored customer” provisions); or could reasonably (ii) provides for any increases in the prices to be expected paid by Company to become materially burdensome to Companyany Significant Supplier for any products or services, other than provisions that are in the ordinary course of Company’s businesses and are consistent with industry practice;(ii) provides for discounts or favored pricing to any future purchase of Company’s products or services; (iii) provides for any increases in the prices to be paid by Company to any supplier for any products or services; or (iv) provides for any warranty or similar obligations with respect to products or services other than an obligation to repair or replace products in the event of defective workmanship or materials provided by Companypractice.

Agreements and Commitments. Except as specifically identified in Schedule SCHEDULE 2.12, Company is not a party or subject to any of the following (whether oral or written): (a) any contract, commitment, agreement, quotation or purchase order providing for payments by or to Company in an aggregate amount of (i) $75,000 or more in excess the ordinary course of $10,000 individually business, consistent with past practice, or (ii) $50,000 or more not in the aggregateordinary course of business, consistent with past practice; (b) any agreement under which Company is licensor of Intellectual Property (as defined in Section 2.13), or under which Company is licensee of any Intellectual Property of any other person Person (except for standard “"shrink wrap” " licenses for off-the-shelf software products); (c) any agreement by Company to encumber, transfer or sell rights in or with respect to any Intellectual Property (as defined in Section 2.13 below); (d) any agreement for the sale or lease of real or personal propertyproperty involving more than $25,000 per year; (e) any dealer, distributor, sales representative, original equipment manufacturer, value added remarketer, volume purchase agreement or other agreement for the distribution or sale of Company’s 's products (other than individual purchase orders in the ordinary course of business consistent with past practice); (f) any franchise agreement; (g) any stock redemption or purchase agreement; (h) any joint venture contract or arrangement or any other agreement that involves a sharing of profits with other persons or the payment of royalties to any other person; (i) any instrument evidencing indebtedness for borrowed money or guarantees thereof; (j) any contract containing covenants purporting to limit Company’s 's freedom to compete in any line of business in any geographic area; (k) any agreement of indemnification or warranting other than standard warranties in connection with the sale of products and/or services in the ordinary course of business, consistent with past practice; (l) any agreement, contract or commitment relating to capital expenditures and which involves future payments in excess of $10,000 individually or $50,000 in the aggregate50,000; (m) any agreement, contract or commitment relating to the disposition or acquisition of any assets (other than Inventory, as defined in Section 2.26) by Company or any Intellectual Property, which involves payments individually in excess of $10,000 individually 50,000 or $50,000 in the aggregateaggregate in excess of $100,000 in the ordinary course of business, consistent with past practice; (n) any purchase order or contract for the purchase of raw materials which involves payments individually in excess of $10,000 individually 75,000 or $50,000 in the aggregateaggregate in excess of $125,000 in the ordinary course of business, consistent with past practice; (o) any agreement relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock capital stock or other securities of Company or any options, warrants or other rights to purchase or otherwise acquire any such shares of Company Capital Stockcapital stock, other securities or options, warrants or other rights therefor, except for those agreements conforming to the standard agreement under the Stock Plans; (p) any contract providing for development of technology for Company, except the Development Agreement; (q) any contract or agreement for the employment of any officer, employee or consultant of Company or any other type of contract, agreement or understanding with any officer, employee or consultant of Company that is not immediately terminable by Company without cost or liability; (r) any contract for consulting or similar services with a term of more than sixty (60) days and which is not terminable without penalty with notice of thirty sixty (3060) days or less; or (s) any contract granting most favored nation pricing and/or terms to any customer, licensee, purchaser, reseller, promoter or remarketer of any products or services.; (t) any contract with or commitment to any labor union; or (u) any other oral or written agreement, obligation or commitment that is material to Company, its financial condition, business or prospects. All agreements, contracts, obligations and commitments listed in Schedules SCHEDULES 2.12, 2.13 and 2.16 2.16. (collectively “Material Agreements”"MATERIAL AGREEMENTS") are valid and in full force and effect. Neither Company nor nor, to the knowledge of Company, any other party is in breach of or default under any material term of any Material Agreement, nor will Company nor nor, to Company's knowledge, any other party be in breach of or default (with or without notice or lapse of time, or both) under any such term after giving effect to the Merger or the transactions contemplated hereby. No party to any such Material Agreement has given notice that Company is in breach or default thereunder, and to the knowledge of Company, no party to any such Material Agreement intends to cancel, withdraw, modify or amend such Material Agreement. A true and complete copy of each Material Agreement and all amendments and schedules thereto has been delivered to Parent’s 's counsel. Company is not a party to any Material Agreement or any other agreement, contract or instrument with any customer, supplier, landlord or labor union or association that (i) contains any provision that is or could reasonably be expected to become materially burdensome to Company, other than provisions that are in the ordinary course of Company’s 's businesses and are consistent with industry practice;(iipractice; (ii) provides for discounts or favored pricing the reduction of prices charged by Company to any future purchase of Company’s Significant Customer (as defined in Section 2.24) for its products or servicesservices other than price reductions that are proportionate to reductions in the related costs (including, without limitation, any "most favored customer" provisions); (iii) provides for any increases in the prices to be paid by Company to any supplier Significant Supplier (as defined in Section 2.25) for any products or services; or (iv) provides for any warranty or similar obligations with respect to products or services other than an obligation to repair or replace products in the event of defective workmanship or materials provided by Company.

Agreements and Commitments. Except as specifically identified in Schedule SCHEDULE 2.12, Company is not a party or subject to any of the following (whether oral or written): (a) any contract, commitment, agreement, quotation or purchase order providing for payments by or to Company in an aggregate amount of (i) $50,000 or more in excess the ordinary course of business, consistent with past practice, or (ii) $10,000 individually or $50,000 more not in the aggregateordinary course of business, consistent with past practice; (b) any agreement under which Company is licensor of Intellectual Property (as defined in Section 2.13), or under which Company is licensee of any Intellectual Property of any other person Person (except for standard “"shrink wrap” " licenses for off-the-shelf software products); (c) any agreement by Company to encumber, transfer or sell rights in or with respect to any Intellectual Property (as defined in Section 2.13 below); (d) any agreement for the sale or lease of real or personal propertyproperty involving more than $10,000 per year; (e) any dealer, distributor, sales representative, original equipment manufacturer, value added remarketer, volume purchase agreement or other agreement for the distribution or sale of Company’s 's products (other than individual purchase orders in the ordinary course of business consistent with past practice); (f) any franchise agreement; (g) any stock redemption or purchase agreement; (h) any joint venture contract or arrangement or any other agreement that involves a sharing of profits with other persons or the payment of royalties to any other person; (i) any instrument evidencing indebtedness for borrowed money or guarantees thereof; (j) any contract containing covenants purporting to limit Company’s 's freedom to compete in any line of business in any geographic area; (k) any agreement of indemnification or warranting other than standard warranties in connection with the sale of products and/or services in the ordinary course of business, consistent with past practice; (l) any agreement, contract or commitment relating to capital expenditures and which involves future payments in excess of $10,000 individually or $50,000 in the aggregate50,000; (m) any agreement, contract or commitment relating to the disposition or acquisition of any assets (other than Inventory, as defined in Section 2.26) by Company or any Intellectual Property, which involves payments individually in excess of $10,000 individually or in the aggregate in excess of $50,000 in the aggregateordinary course of business, consistent with past practice; (n) any purchase order or contract for the purchase of raw materials which involves payments individually in excess of $10,000 individually or in the aggregate in excess of $50,000 in the aggregateordinary course of business, consistent with past practice; (o) any agreement relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock capital stock or other securities of Company or any options, warrants or other rights to purchase or otherwise acquire any such shares of Company Capital Stockcapital stock, other securities or options, warrants or other rights therefor, except for those agreements conforming to the standard agreement under the Stock Plans; (p) any contract providing for development of technology for Company, except the Development Agreement; (q) any contract or agreement for the employment of any officer, employee or consultant of Company or any other type of contract, agreement or understanding with any officer, employee or consultant of Company that is not immediately terminable by Company without cost or liability; (r) any contract for consulting or similar services with a term of more than sixty (60) days and which is not terminable without penalty with notice of thirty sixty (3060) days or less; or (s) any contract granting most favored nation pricing and/or terms to any customer, licensee, purchaser, reseller, promoter or remarketer of any products or services. (t) any contract with or commitment to any labor union; or (u) any other oral or written agreement, obligation or commitment that is material to Company, its financial condition, business or prospects. All agreements, contracts, obligations and commitments listed in Schedules SCHEDULES 2.12, 2.13 and 2.16 2.16. (collectively “Material Agreements”"MATERIAL AGREEMENTS") are valid and in full force and effect. Neither Company nor any other party is in breach of or default under any material term of any Material Agreement, nor will Company nor any other party be in breach of or default (with or without notice or lapse of time, or both) under any such term after giving effect to the Merger or the transactions contemplated hereby. No party to any such Material Agreement has given notice that Company is in breach or default thereunder, and no party to any such Material Agreement intends to cancel, withdraw, modify or amend such Material Agreement. A true and complete copy of each Material Agreement and all amendments and schedules thereto has been delivered to Parent’s 's counsel. Company is not a party to any Material Agreement or any other agreement, contract or instrument with any customer, supplier, landlord or labor union or association that (i) contains any provision that is or could reasonably be expected to become materially burdensome to Company, other than provisions that are in the ordinary course of Company’s 's businesses and are consistent with industry practice;(iipractice; (ii) provides for discounts or favored pricing the reduction of prices charged by Company to any future purchase of Company’s Significant Customer (as defined in Section 2.24) for its products or servicesservices other than price reductions that are proportionate to reductions in the related costs (including, without limitation, any "most favored customer" provisions); (iii) provides for any increases in the prices to be paid by Company to any supplier Significant Supplier (as defined in Section 2.25) for any products or services; or (iv) provides for any warranty or similar obligations with respect to products or services other than an obligation to repair or replace products in the event of defective workmanship or materials provided by Company.